State of Tennessee v. Marlon Sontay

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
February 12, 2013 Session

STATE OF TENNESSEE v. MARLON SONTAY

Appeal from the Criminal Court for Davidson County
No. 2010-A-518 Seth Norman, Judge

No. M2012-01579-CCA-R3-CD - Filed July 31, 2013

Appellant, Marlon E. Sontay, was indicted by the Davidson County Grand Jury for four
counts of rape of a child, two counts of aggravated sexual battery, and one count of rape.
Appellant was convicted by a jury of all counts. Appellant was sentenced to twenty five
years for each count of rape of a child, eight years for each count of aggravated sexual
battery, and eight years for rape. The trial court ordered Count Two for rape of a child to run
consecutively to Count One for rape of a child. The remaining counts were ordered to run
concurrently to each other, for a total effective sentence of 50 years at 100%. Appellant filed
a timely motion for a new trial, which was denied by the trial court. Appellant raises the
following issues for our review: (1) whether the trial court erred in denying the motion to
suppress; (2) whether the trial court improperly admitted hearsay testimony of statements
made by the victim during the testimony of the nurse practitioner who performed the victim’s
medical examination; (3) whether the evidence was sufficient to support the convictions; (4)
whether the trial court improperly sentenced Appellant; and (5) whether the trial court erred
in declining to find Tennessee Code Annotated sections 39-13-504, 39-13-522, and 39-13-
523 unconstitutional. After a review of the record and applicable authorities, we hold that:
(1) the trial court did not abuse its discretion in denying the motion to suppress where
Appellant voluntarily confessed to detectives; (2) Appellant has waived any issue with regard
to the admission of hearsay testimony by failing to object to the testimony at trial and raise
the issue in a motion for new trial; (3) the evidence is sufficient to support the convictions
for rape of a child, aggravated sexual battery, and rape; (4) the trial court did not abuse its
discretion in sentencing Appellant within the range of punishment for his convictions; and
(5) the trial court did not err in refusing to find Tennessee Code Annotated sections 39-13-
504, 39-13-522, and 39-13-523 unconstitutional. Accordingly, the judgments of the trial
court are affirmed.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Trial Court are Affirmed.
J ERRY L. S MITH, J., delivered the opinion of the court, in which R OBERT W. W EDEMEYER and
J EFFREY S. B IVINS, JJ., joined.

Kathleen G. Morris, Nashville, Tennessee, for the appellant, Marlon Sontay.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel Harmon, Assistant Attorney
General; Victor S. Johnson, III, District Attorney General, and Sharon Reddick, Assistant
District Attorney General, for the appellee, State of Tennessee.

OPINION

Factual Background

Appellant was arrested after his niece, O.S.,1 informed her parents that her uncle had
been sexually abusive towards her. The abuse occurred while the victim was twelve and
thirteen years of age. After an investigation, Detective Jill Weaver of the Metropolitan
Nashville Police Department obtained an arrest warrant for Appellant. Appellant was
arrested and transported to a local hospital for mandatory HIV testing as a result of the
pending charges for rape of a child.

When Appellant was taken to the Criminal Justice Center, he was interviewed by
Detective Weaver and a Spanish-speaking officer. After he was read his Miranda rights,
Appellant admitted to the sexual abuse.

Appellant was indicted by the Davidson County Grand Jury in January of 2010 for
four counts of rape of a child, two counts of aggravated sexual battery and one count of rape.
Prior to trial, Appellant sought to suppress his statements to police. At the hearing on the
motion to suppress, Detective Weaver testified that Appellant’s confession was voluntary.
Appellant testified that he admitted he sexually abused the victim. Further, he admitted that
his admission did not come as a result of questioning by the detective. Appellant testified
that his statements admitting the sexual abuse before and during the formal interview were
consistent with each other. The trial court denied the motion to suppress.

At trial, the victim, then fourteen years of age and in the eighth grade, took the stand.
She explained that during the summer between fifth and sixth grade, when she was twelve,
she lived with her parents, siblings, aunt, uncle, and Appellant at her home in Nashville.

1
It is the policy of this Court to identify minor victims of sexual abuse by their initials.

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 The victim explained that the first incidence of abuse took place when her mother was
in Houston. Appellant had been drinking and came into the victim’s bedroom, touched her
breasts and leg, and tried to lay down with her on her bed. The victim told Appellant to
leave. He complied.

A few days later, Appellant, the victim, and the victim’s younger sister were at home
alone. Appellant took the victim to her bedroom where he undressed her, got on top of her,
and put his penis inside her vagina. The victim asked him why he was having sex with her,
and he responded that “he couldn’t do it with anybody else.”

The next incident occurred one day early in the school year when the victim was home
sick from school. Appellant again took her to her bedroom and put his penis inside her
vagina. She asked him to stop. He refused.

On yet another occasion, the victim was asleep in her room. She awoke to find
Appellant in her room. He tried to put his penis in her “behind.” He managed to get his
penis in “a little bit.”

Shortly before the victim’s thirteenth birthday, Appellant woke the victim up in the
middle of the night. He kissed her vagina and spit on it to make his penis go in easier.

There was one occasion during which Appellant asked the victim to come to his room
to play video games on his computer. Once the victim was in his room, Appellant put his
penis inside her vagina.

The abuse stopped after the victim’s parents came home one day to find Appellant in
the victim’s bathroom. His clothing was on the floor of the victim’s bedroom. The victim’s
father, E.S. threw Appellant out of the house and contacted police.

E.S. testified at trial that he was the father of the victim. Appellant is his younger
brother and came from Guatemala to live with them when the victim was a young child.
Appellant and his family had a great relationship and Appellant was looked at as part of the
family. E.S. recalled the day that he caught Appellant in the victim’s bathroom wearing only
underwear. He immediately confronted Appellant and gave him one hour to pack his
belongings and leave the house.

The victim would only speak with her mother, A.T., about the abuse. The two rode
around in the car while the victim recounted the abuse that had started while A.T. was in
Houston and continued for at least three months.

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 Sometime in the next few days, Appellant sent a text message to E.S. apologizing.
The message also stated that no one should say anything to prevent the victim from looking
bad.

The victim was taken to Our Kids for a medical examination in conjunction with the
investigation. At trial, Nurse Practitioner Hollye Gallion testified. She was qualified as an
expert in forensic medical examinations of children. She treated the victim on December 11,
2009, about one week after the last incident of abuse. The victim reported that Appellant
would “put his body on [her] and he would put his slushy stuff on the paper and throw it
away and then come back and do it to [her] again.” The victim reported to Ms. Gallion that
Appellant touched her breasts, vagina, and anal area. The physical examination showed no
evidence of sexual abuse. Ms. Gallion did not expect the examination to show any evidence
of sexual abuse due to the timing of the examination.

During the investigation, Detective Jill Weaver set up a controlled telephone call from
A.T, the victim’s mother, to Appellant. During the telephone call, Appellant admitted that
he sexually had abused the victim.

Following his arrest, Appellant was interviewed. Appellant waived his Miranda
rights and admitted that he had sexually abused the victim. Appellant corroborated much of
the victim’s allegations. He “described having sexual intercourse with her. . . three to four
times.” Appellant also “admitted to having anal sex with [the victim] from behind.”
Appellant also admitted that he did not want to get the victim pregnant so he would “pull out
and ejaculate on an article of clothing or some tissue.” Appellant described with specificity
when the abuse occurred, “normally happening when her parents were gone and, specifically,
that first time when her mom was in Texas.” Appellant also stated that he was “fully aware
of how old [the victim] was” and “basically described it as she was flirting with him, and that
she was acting like she was into wanting to have sex with him.” Appellant also admitted that
he had just finished having sex with the victim when he was caught by her parents and was
in the bathroom to “finish wiping off.”

Appellant’s sister, Maria Sontay, testified that she caught Appellant and the victim’s
mother, A.T., in a hotel room about to kiss. She claimed to have no knowledge of the abuse
and referred to it as a “family problem.”

Appellant testified that he was “madly in love” with the victim’s mother, A.T., and
claimed that the two had an affair. According to Appellant, A.T. asked him to move out but
Appellant refused. A.T. only successfully got Appellant to move out by falsely accusing him
of sexually abusing the victim. Appellant stated that he lied to Detective Weaver because

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she coerced him into confessing. Further, Appellant claimed that he lied during the
controlled telephone call because he loved A.T. and was trying to hide their relationship.

At the conclusion of the proof, the jury convicted Appellant of four counts of rape of
a child, two counts of aggravated sexual battery, and one count of rape. The trial court held
a separate sentencing hearing. At the hearing, Appellant was sentenced to twenty-five years
for each conviction for rape of a child, and eight years for each remaining conviction. The
trial court ordered two of the convictions for rape of a child to run consecutively to each
other but concurrently to the remaining convictions, for a total effective sentence of fifty
years at 100%.

Appellant filed a timely motion for new trial. After a hearing, the trial court denied
the motion. Appellant appeals, challenging: (1) the denial of the motion to suppress; (2) the
admission of hearsay testimony; (3) sufficiency of the evidence; (4) his sentence; and (5) the
constitutionality of Tennessee Code Annotated sections 39-13-504, 39-13-522, and 39-13-
523.

Denial of Motion to Suppress

Initially, Appellant complains that the trial court improperly denied his motion to
suppress. Specifically, Appellant claims that Detective Weaver elicited a pre-Miranda
confession from Appellant in exchange for “help” and that, as a result, both this statement
and Appellant’s post-Miranda confession are inadmissible. The State, on the other hand,
argues that the trial court accredited the testimony of Detective Weaver, which showed that
Appellant confessed only after he was given his Miranda warnings. Therefore, the State
insists, the “legality of his voluntary confession . . . does not implicate Fifth Amendment
concerns.”

“This Court will uphold a trial court’s findings of fact in a suppression hearing unless
the evidence preponderates otherwise.” State v. Hayes, 188 S.W.3d 505, 510 (Tenn. 2006)
(citing State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996)). On appeal, “[t]he prevailing party
in the trial court is afforded the ‘strongest legitimate view of the evidence and all reasonable
and legitimate inferences that may be drawn from that evidence.’” State v. Carter, 16
S.W.3d 762, 765 (Tenn. 2000) (quoting State v. Keith, 978 S.W.2d 861, 864 (Tenn. 1998)).
“Questions of credibility of the witnesses, the weight and value of the evidence, and
resolution of conflicts in the evidence are matters entrusted to the trial judge as the trier of
fact.” Odom, 928 S.W.2d at 23. Our review of a trial court’s application of law to the facts
is de novo, with no presumption of correctness. State v. Walton, 41 S .W.3d 75, 81 (Tenn.
2001) (citing State v. Crutcher, 989 S.W.2d 295, 299 (Tenn. 1999); State v. Yeargan, 958
S.W.2d 626, 629 (Tenn. 1997)). When the trial court’s findings of fact are based entirely on

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evidence that does not involve issues of witness credibility, however, appellate courts are as
capable as trial courts of reviewing the evidence and drawing conclusions, and the trial
court’s findings of fact are subject to de novo review. State v. Binette, 33 S.W.3d 215, 217
(Tenn. 2000). Further, we note that “in evaluating the correctness of a trial court’s ruling on
a pretrial motion to suppress, appellate courts may consider the proof adduced both at the
suppression hearing and at trial.” State v. Henning, 975 S.W.2d 290, 299 (Tenn. 1998).

The Fifth Amendment to the United States Constitution provides in pertinent part that
“no person . . . shall be compelled in any criminal case to be a witness against himself.” U.S.
Const. amend. V. Similarly, Article I, Section 9 of the Tennessee Constitution states that “in
all criminal prosecutions, the accused shall not be compelled to give evidence against
himself.” Tenn. Const. art. I, § 9. However, an accused may waive this right against
self-incrimination. Miranda v. Arizona, 384 U.S. 436 (1966). The Supreme Court held that
a suspect may knowingly and intelligently waive the right against self-incrimination only
after being apprised of these rights. Id. 384 U.S. at 479. Accordingly, for a waiver of the
right against self-incrimination to be constitutionally valid, the accused must make an
intelligent, knowing, and voluntary waiver of the rights afforded by Miranda. Id. at 444. In
considering the totality of the circumstances a court should consider:

[T]he age of the accused; his lack of education or his intelligence level; the
extent of his previous experience with the police; the repeated and prolonged
nature of the questioning; the length of the detention of the accused before he
gave the statement in question; the lack of any advice to the accused of his
constitutional rights; whether there was an unnecessary delay in bringing him
before a magistrate before he gave the confession; whether the accused was
injured intoxicated or drugged, or in ill health when he gave the statement;
whether the accused was deprived of food, sleep or medical attention; whether
the accused was physically abused; and whether the suspect was threatened
with abuse.

State v. Huddleston, 924 S.W.2d 666, 671 (Tenn. 1996) (quoting People v. Cipriano, 429
N.W.2d 781 (Mich. 1988)). However, no single factor is necessarily determinative. State v.
Blackstock, 19 S.W.3d 200, 208 (Tenn. 2000) (citing Fairchild v. Lockhart, 744 F.Supp.
1429, 1453 (E.D. Ark. 1989)). Further, “[a] trial court’s determination that a confession was
given knowingly and voluntarily is binding on the appellate courts unless the defendant can
show that the evidence preponderates against the trial court’s ruling.” State v. Keen, 926
S.W.2d 727, 741 (Tenn. 1994).

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 A court may conclude that a defendant voluntarily waived his rights if, under the
totality of the circumstances, the court determines that the waiver was uncoerced and that the
defendant understood the consequences of waiver. State v. Stephenson, 878 S.W.2d 530, 545
(Tenn. 1994). In order to be considered voluntary, the statement “must not be extracted by
any sort of threats or violence, nor obtained by any direct or implied promises, however
slight, nor by the exertion of any improper influence.” State v. Kelly, 603 S.W.2d 726, 727
(Tenn. 1980)(quoting Bram v. United States, 168 U.S. 532, 542-43, 18 S. Ct. 183, 42 L. Ed.
568 (1897)). However, “[a] defendant’s subjective perception alone is not sufficient to
justify a conclusion of involuntariness in the constitutional sense.” State v. Smith, 933
S.W.2d 450, 455 (Tenn. 1996). Instead, “‘coercive police activity is a necessary predicate
to finding that a confession is not voluntary . . . .’” Id. (quoting State v. Brimmer, 876
S.W.2d 75, 79 (Tenn. 1994)).

At the hearing on the motion to suppress, the trial court determined that Appellant
understood his Miranda warnings and that Appellant made one confession to Detective
Weaver. The trial court summarized the facts as follows:

[After arrest Appellant] was escorted from the booking area. . . to an interview
room for purposes of obtaining a statement in the matter. [Appellant] contends
that during this walk, Detective Jill Weaver questioned him about the
allegations and he made inculpatory statements in response.

....

Detective Weaver denies having discussed the substance of the investigation
with [Appellant]. She maintains that the only thing she asked of [Appellant]
was if he had been treated alright since being taken into custody and whether
he wished to have an interpreter assist in the matter. Detective Weaver stated
that she informed him of the nature of the charges alleged in the warrant but
nothing else was ever discussed. She testified that his English was limited but
she believed that he was able to understand most of what was going on.

....

[T]he testimony of [Appellant] with regard to the conversation between he and
Detective Weaver is at variance. . . . [T]aking into account the fact that
[Appellant’s] knowledge of the English language is limited, his contention that
he and Detective Weaver maintained an in-depth conversation in which he
made inculpatory statements and was promised leniency in return for a
subsequent recorded statement is difficult to believe.

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 Although it seems as though Detective Weaver initiated conversation
with [Appellant], her testimony is more consistent and detailed. . . . From an
objective examination of the testimony . . . , the Court is of the opinion that the
issue of credibility should be resolved in favor of Detective Weaver. As a
result, [Appellant’s] statement was evidently taken pursuant to a legally
perfected Miranda waiver and is thus admissible.

As a result of the trial court’s assessment of the facts, the court determined that even
if Appellant made statements to Detective Weaver prior to the administration of Miranda
warnings, those statements were spontaneous and voluntary and, therefore, admissible.

The record supports the findings of the trial court. The officer testified that Appellant
was confronted with the allegations against him only after he was read his Miranda rights.
At that time, Appellant admitted that he sexually abused the victim. Although Appellant
testified that he confessed to Detective Weaver both prior to and after he was read his rights,
the trial court accredited the testimony of Detective Weaver, a task entrusted to the trial court
as the finder of fact. Appellant has not shown that the evidence preponderates against the
findings of the trial court that he understood his Miranda rights and chose to confess to the
abuse. Moreover, even if Appellant had confessed to the crimes prior to the delivery of his
Miranda rights, a voluntary confession would be admissible. See State v. Walton, 41 S.W.3d
75, 82 (Tenn. 2001); State v. Callahan, 979 S.W.2d 577, 582 (Tenn. 1998). Appellant is not
entitled to relief on this issue.

Admission of Hearsay Testimony

Next, Appellant argues that his right to confront witnesses was violated because the
trial court allowed hearsay statements made by the victim during her forensic exam to be
admitted at trial. Specifically, Appellant contends that the statements made by the victim to
Ms. Gallion during her exam at Our Kids were inappropriately admitted during the testimony
by Ms. Gallion. Additionally, Appellant complains about statements made by the victim
during a forensic interview to an unnamed party that were referred to during the testimony
of Detective Weaver. Appellant admits that there was no objection to the testimony at trial
but urges this Court to find plain error. The State, on the other hand, states that Appellant
waived the issue for failing to object at trial and failing to raise the issue in the motion for
new trial.

Our supreme court has mandated that when “a party does not object to the
admissibility of evidence, . . . the evidence becomes admissible notwithstanding any other
Rule of Evidence to the contrary, and the jury may consider that evidence for its ‘natural

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probative effects as if it were in law admissible.’” State v. Smith, 24 S.W.3d 274, 280 (Tenn.
2000) (quoting State v. Harrington, 627 S.W.2d 345, 348 (Tenn. 1981)). Accordingly, we
find no error was committed, and any consideration of whether the hearsay statements of the
victim submitted at trial could have been inadmissible hearsay is waived for failure to object
to the testimony at trial or raise the issue before the trial court at a motion for new trial. See
Tenn. R. App. P. 36(a).

In addition, we briefly note that the issue presented by Appellant fails to meet the
requirements necessary for a finding of plain error. Our supreme court has upheld the long
established rule that “plain error review places on the defendant the burden of persuasion,”
and that “[t]he substantive standards for plain error review are difficult to satisfy.” State v.
Gomez, 163 S.W.3d 632, 646 (Tenn. 2005). An appellate court can reverse for plain error
only if:

(a) the record . . . clearly establish[es] what occurred in the trial court; (b) a
clear and unequivocal rule of law [has] been breached; (c) a substantial right
of the accused [has] been adversely affected; (d) the accused did not waive the
issue for tactical reasons; and (e) consideration of the error is “necessary to do
substantial justice.

Smith, 24 S.W.3d at 282 (quoting State v. Adkisson, 899 S.W.2d 626, 641-42 (Tenn. Crim.
App. 1994)). Furthermore, all five factors must be established, and this Court need not
address all five factors if any one factor indicates that relief is not warranted. Smith, 24
S.W.3d at 283.

Even if we were to find the admission of the complained of statements was error, the
overwhelming proof of guilt presented in this case would have rendered any error harmless
and therefore, our consideration of this issue would not be necessary to do substantial justice.
Appellant is not entitled to relief on this issue.

Sufficiency of the Evidence

Next, Appellant claims that the trial court erred in denying his motion for judgment
of acquittal and that the evidence was insufficient to support the convictions. Specifically,
Appellant points to the victim’s “vague and inconsistent” testimony, arguing that there was
not proof to support rape, rape of a child, or aggravated sexual battery because the age of the
victim at the time of the offenses was not proven; the proof did not show that Appellant
penetrated the victim’s anal opening; the proof did not show that appellant performed
cunnilingus on ths victim; “[k]issing [the victim’s groin area] is not rape”; and the proof did

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not show that the touching of the victim was “for the purpose of sexual arousal or
gratification.” The State disagrees.

To begin our analysis, we note that when a defendant challenges the sufficiency of the
evidence, this Court is obliged to review that claim according to certain well-settled
principles. A verdict of guilty, rendered by a jury and “approved by the trial judge, accredits
the testimony of the” State’s witnesses and resolves all conflicts in the testimony in favor of
the State. State v. Cazes, 875 S.W.2d 253, 259 (Tenn. 1994); State v. Harris, 839 S.W.2d
54, 75 (Tenn. 1992). Thus, although the accused is originally deemed with a presumption
of innocence, the verdict of guilty removes this presumption and replaces it with one of guilt.
State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997); State v. Tuggle, 639 S.W.2d 913, 914
(Tenn. 1982). Hence, on appeal, the burden of proof rests with the defendant to demonstrate
the insufficiency of the convicting evidence. Id.

The relevant question the reviewing court must answer is whether any rational trier
of fact could have found the accused guilty of every element of the offense beyond a
reasonable doubt. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 318-19 (1979).
In making this decision, we are to accord the State “the strongest legitimate view of the
evidence as well as all reasonable and legitimate inferences that may be drawn therefrom.”
See Tuggle, 639 S.W.2d at 914. As such, this Court is precluded from re-weighing or
reconsidering the evidence when evaluating the convicting proof. State v. Morgan, 929
S.W.2d 380, 383 (Tenn. Crim. App. 1996); State v. Matthews, 805 S.W.2d 776, 779 (Tenn.
Crim. App. 1990). Moreover, we may not substitute our own “inferences for those drawn by
the trier of fact from circumstantial evidence.” Matthews, 805 S.W.2d at 779. Further,
questions concerning the credibility of the witnesses and the weight and value to be given
to evidence, as well as all factual issues raised by such evidence, are resolved by the trier of
fact and not the appellate courts. State v. Pruett, 788 S.W.2d 559, 561 (Tenn. 1990).

The guilt of a defendant, including any fact required to be proved, may be predicated
upon direct evidence, circumstantial evidence, or a combination of both direct and
circumstantial evidence. See State v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim.
App. 1999). Even though convictions may be established by different forms of evidence, the
standard of review for the sufficiency of that evidence is the same whether the conviction is
based upon direct or circumstantial evidence. See State v. Dorantes, 331 S.W.3d 370, 379
(Tenn. 2011). As such, all reasonable inferences from evidence are to be drawn in favor of
the State. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978); See Tuggle, 639 S.W.2d at
914.

A motion for judgment of acquittal requires that the trial court determine the
sufficiency of the evidence. Tenn. R. Crim. P. 29(a). The standard of review is, therefore,

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the same as that utilized when analyzing the sufficiency of the evidence. State v. Blanton,
926 S.W.2d 953, 957-58 (Tenn. Crim. App. 1996). The law of this state is that a defendant
waives any error by a trial court in denying a motion for a judgment of acquittal at the
conclusion of the State’s proof if the defendant goes on to introduce evidence following the
denial of his motion. Finch v. State, 226 S.W.3d 307, 316-18 (Tenn. 2007); Mathis v. State,
590 S.W.2d 449, 453 (Tenn. 1979). At the conclusion of the State’s proof, Appellant made
a motion for judgment of acquittal. After hearing Appellant’s argument, the trial court
denied the motion. Appellant proceeded to present witnesses and evidence. For this reason,
Appellant has waived this issue with regard to the denial of his motion for judgment of
acquittal at the conclusion of the State’s proof.

As stated above, the standard for reviewing a judgment of acquittal is the same as that
for sufficiency of the evidence. Below we address Appellant’s claims that the evidence was
insufficient.

A. Rape of a Child

Appellant was convicted of rape of a child in Counts one through four. Tennessee
Code Annotated section 39-13-522(a) states, “Rape of a child is the unlawful sexual
penetration of a victim by the defendant or the defendant by a victim, if the victim is more
than three (3) years of age but less than thirteen (13) years of age.” Sexual penetration is
defined as “sexual intercourse, cunnilingus, fellatio, anal intercourse, or any other intrusion,
however slight, of any part of a person’s body or of any object into the genital or anal
openings of the victim’s, the defendant’s, or any other person’s body, but emission of semen
is not required.” T.C.A. § 39-13-501(7).

At trial, the State elected in Count one to rely on the incident where Appellant
“penetrated the victim’s genitals with his penis the first time she stayed home from school
in the sixth grade.” The victim testified at trial that she was home from school early in the
school year when Appellant took her to her bedroom and put his penis in her vagina. She
asked him to stop, he refused. The victim testified her birthday was on November 5, 1996,
the first incident happened while her mother was in Houston in the summer of 2009, and
school started in the fall of 2009. Appellant claims that the State failed to show the victim’s
age at the time of the incident and that there was conflicting testimony about why the victim
was home from school. We disagree. The proof established that the victim was under the
age of thirteen at the time and that Appellant penetrated the victim’s vagina with his penis.

In Count two, the State elected to rely on testimony that Appellant “penetrated the
victim’s anal opening a ‘little bit’ when he woke her in her bedroom and she had been lying
on her stomach.” Appellant contends that the proof indicated that the victim described the

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body part as her “behind” not her “anal opening”, the State failed to establish the victim’s
age, and the State failed to show penetration. The proof at trial showed the victim testified
that Appellant put his penis in her “behind” a “little bit.” The victim testified that the first
incident of abuse occurred when her mother was in Houston and continued for three months
until Appellant was caught. There was testimony from the victim about Appellant’s
penetrating her behind on one occasion. The evidence was sufficient to show penetration of
the victim’s anal opening from behind while she was younger than thirteen.

In Count three, the State elected to rely on testimony that Appellant “performed
cunnilingus on the victim when he pulled down her pants and ‘kissed’ her vagina in her
bedroom.” Appellant insists that the term cunnilingus is improper because the kissing of the
victim’s vagina does not equate to rape. Cunnilingus is defined as a method of penetration
in Tennessee Code Annotated section 39-13-501(7). Further, even the slightest intrusion can
satisfy the requirement of penetration and cunnilingus “does not require that the mouth or
tongue actually penetrate the vagina.” State v. Terry Vestal, No. W1999-00287-CCA-R3-
CD, 1999 WL 1097819, at *4 (Tenn. Crim. App., at Jackson, Nov. 22, 1999), perm. app.
denied (Tenn. June 12, 2000). Appellant is not entitled to relief on this issue.

Finally, in Count four, the State elected to rely on the testimony where Appellant
“penetrated the victim’s genitals with his penis in his bedroom after he called her up to play
video games.” Appellant again challenges the proof as to Appellant’s age. The testimony
by the victim at trial was that the one time Appellant penetrated her with his penis in his
bedroom was when he called her up to play games on his computer. According to the
victim’s testimony, this occurred prior to her birthday. Appellant is not entitled to relief on
this issue.

B. Aggravated Sexual Battery

Appellant was convicted of two counts of aggravated sexual battery, which, as
relevant to this case, is defined as the “unlawful sexual contact with a victim by the defendant
or the defendant by a victim [when] . . . [t]he victim is less than thirteen (13) years of age.”
T.C.A. § 39-13-504(a)(4). “Sexual contact” is “the intentional touching of the victim’s, the
defendant’s, or any other person’s intimate parts, or the intentional touching of the clothing
covering the immediate areas of the victim’s . . . intimate parts, if that intentional touching
can be reasonably construed as being for the purpose of sexual arousal or gratification.” Id.
§ 39-13-501(6). Additionally, “‘[i]ntimate parts’ includes the primary genital area, groin,
inner thigh, buttock or breast of a human being.” Id. § 39-13-501(2).

In Count five, the State elected to rely on the testimony that Appellant “touched the
victim’s breasts on the skin with his hand in her bedroom while her mother was in Houston.”

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The victim testified at trial that this was the first time Appellant touched her inappropriately.
Appellant was drinking, came into her bedroom, touched her breasts and legs, and tried to
lay down with her on the bed. She asked Appellant to leave and he complied. Appellant
insists that there is not proof that the conduct was for the purposes of sexual arousal or
gratification. To the contrary, the victim’s testimony indicated that she thought Appellant
was touching her because he wanted to have sex with her. Additionally, Appellant admitted
in his confession that he began the sexual abuse of the victim when her mother was in
Houston. The jury obviously accredited the testimony of the victim. Appellant is not entitled
to relief on this issue.

In Count six, the State elected to rely on the testimony that Appellant “touched the
victim’s breasts with his hand before engaging in penile vaginal intercourse a few days after
the first incident when her mother was in Houston. At trial, the victim testified that a few
days after the first incident, she was home alone with her younger sister and Appellant when
Appellant took her to her room, undressed her, got on top of her, and put his penis in her
vagina. Appellant insists on appeal that the victim’s testimony at trial was inconsistent with
her earlier statements. A review of the victim’s testimony indicates discrepancies in
secondary details about this incident. However, these details relate to the location of her
family members during the abuse and when Appellant removed his clothing rather than the
actual act of abuse. The jury obviously accredited the victim’s testimony. Appellant is not
entitled to relief on this issue.

C. Rape

Finally, in Count seven, Appellant was convicted of rape by force or coercion. Rape
is the “unlawful sexual penetration of a victim by the defendant or of the defendant by a
victim accompanied by any of the following circumstances . . . [f]orce or coercion is used to
accomplish the act.” T.C.A. § 39-13-503(a)(1). “Coercion” is defined as the “threat of
kidnapping, extortion, force, or violence to be performed immediately or in the future or the
use of parental, custodial, or official authority over a child less than fifteen (15) years of
age.” T.C.A. § 39-13-501(1).

In this count, the State relied on the testimony that Appellant “penetrated the victim’s
genitals with his penis on the day that her parents found out about the abuse.” Appellant’s
argument with respect to the evidence on this count focuses on the victim’s actions, rather
than his own admission that he had just finished having sex with the victim and needed to
“finish wiping off” when he was caught by the victim’s parents. The victim explained that
she did not tell anyone about the abuse by her uncle who, in a custodial capacity, lived with
the family, because she was afraid that she would get in trouble. The victim specified that
she had asked Appellant to stop but he “just kept on doing it, so [she] didn’t think [telling

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anyone else] would help.” The jury clearly believed that Appellant utilized his position as
the victim’s uncle to inflict the abuse. Appellant is not entitled to relief on this issue.

Sentencing

Appellant challenges his sentence as excessive. Specifically, he alleges that the trial
court abused its discretion by imposing consecutive sentences. The State disagrees.

Appellate review of sentencing is for abuse of discretion. We must apply “a
presumption of reasonableness to within-range sentencing decisions that reflect a proper
application of the purposes and principles of our Sentencing Act.” See State v. Bise, 380
S.W.3d 682, 707 (Tenn. 2012).

In making its sentencing determination, the trial court, at the conclusion of the
sentencing hearing, first determines the range of sentence and then determines the specific
sentence and the appropriate combination of sentencing alternatives by considering: (1) the
evidence, if any, received at the trial and the sentencing hearing; (2) the presentence report;
(3) the principles of sentencing and arguments as to sentencing alternatives; (4) the nature
and characteristics of the criminal conduct involved; (5) evidence and information offered
by the parties on the enhancement and mitigating factors; (6) any statistical information
provided by the administrative office of the courts regarding sentences for similar offenses;
(7) any statements the defendant wishes to make in the defendant’s behalf about sentencing;
and (8) the potential for rehabilitation or treatment. T.C.A. §§ 40-35-210(a), (b), -103(5);
State v. Williams, 920 S.W.2d 247, 258 (Tenn. Crim. App. 1995).

The trial court is still required to place on the record its reasons for imposing the
specific sentence, including the identification of the mitigating and enhancement factors
found, the specific facts supporting each enhancement factor found, and the method by which
the mitigating and enhancement factors have been evaluated and balanced in determining the
sentence. See Bise, 380 S.W.3d at 705 n.41; State v. Samuels, 44 S.W.3d 489, 492 (Tenn.
2001). Thus, according to Bise, a “sentence should be upheld so long as it is within the
appropriate range and the record demonstrates that the sentence is otherwise in compliance
with the purposes and principles listed by statute.” 380 S.W.3d at 709.

A trial court may impose consecutive sentences upon a determination that one or more
of the criteria set forth in Tennessee Code Annotated section 40-35-115(b) exists. This
section permits the trial court to impose consecutive sentences if the court finds, among other
criteria, that:

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 (1) The defendant is a professional criminal who has knowingly devoted the
defendant’s life to criminal acts as a major source of livelihood;

(2) The defendant is an offender whose record of criminal activity is extensive;

(3) The defendant is a dangerous mentally abnormal person so declared by a
competent psychiatrist who concludes as a result of an investigation prior to
sentencing that the defendant’s criminal conduct has been characterized by a
pattern of repetitive or compulsive behavior with heedless indifference to
consequences;

(4) The defendant is a dangerous offender whose behavior indicates little or
no regard for human life, and no hesitation about committing a crime in which
the risk to human life is high;

(5) The defendant is convicted of two (2) or more statutory offenses involving
sexual abuse of a minor with consideration of the aggravating circumstances
arising from the relationship between the defendant and victim or victims, the
time span of defendant’s undetected sexual activity, the nature and scope of the
sexual acts and the extent of the residual, physical and mental damage to the
victim or victims;

(6) The defendant is sentenced for an offense committed while on probation;
or

(7) The defendant is sentenced for criminal contempt.

T.C.A. § 40-35-115(b). When imposing a consecutive sentence, a trial court should also
consider general sentencing principles, which include whether or not the length of a sentence
is justly deserved in relation to the seriousness of the offense. See State v. Imfeld, 70 S.W.3d
698, 708 (Tenn. 2002). The imposition of consecutive sentencing is in the discretion of the
trial court. See State v. Adams, 973 S.W.2d 224, 230-31 (Tenn. Crim. App. 1997).

Appellant herein was convicted of four counts of rape of child, two counts of
aggravated sexual battery, and one count of rape. The trial court based the imposition of
consecutive sentencing on Tennessee Code Annotated section 40-35-115(b)(5), more than
two convictions of offenses involving child sexual abuse. After making it clear that the trial
court had considered the evidence at trial and sentencing as well as the presentence report,
the principles of sentencing, the nature and characteristics of the criminal conduct involved,
the mitigating factors, sentencing practices in Tennessee, and the potential for rehabilitation,

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the trial court noted that consecutive sentence was based on factor five under Tennessee
Code Annotated section 40-35-115. The record in this case fully supports that conclusion.

Constitutionality of Tennessee Code Annotated
sections 39-13-504, 39-13-522, and 39-13-523

Prior to sentencing, Appellant filed a motion requesting that the trial court find
Tennessee Code Annotated sections 39-13-504, 39-13-522, and 39-13-523 unconstitutional
contending these statutes violate the separation of powers clause of the Tennessee
Constitution. Specifically, Appellant argued that the statutes violate Article II, section I of
the Tennessee Constitution which provides that the “powers of the Government shall be
divided into three distinct departments: the Legislative, Executive, and Judicial.” Appellant
contends that the sentencing statutes applicable to his case violate the constitution because
of the “removal of the authority to grant probation or parole” because the authority to grant
probation is vested in the judicial branch, the authority to grant parole is vested in the
executive branch, and the statutes in this case “reassign the powers properly vested in the
judicial and executive branches to the legislative branch.”

It appears that Appellant is contesting the fact that he was ordered to serve 100% of
his sentence in incarceration. Tennessee Code Annotated section 39-13-523(b) requires child
rapists to serve the “entire sentence imposed by the court undimished by any sentence
reduction credits such person may be eligible for or earn.”

Issues of constitutional interpretation are questions of law, which the court reviews
de novo without any presumption of correctness given to the legal conclusions of the court
below. State v. Burns, 205 S.W.3d 412, 414 (Tenn. 2006) (citing S. Constructors, Inc. v.
Loudon County Bd. Of Educ., 58 S.W.3d 706, 710 (Tenn. 2001)). Based on the legislature’s
enactment of the statutes challenged by Appellant, it is apparent that our general assembly
has determined that the seriousness of the offense warrants a more severe punishment and
that the authorized punishment is reasonably related to protecting the children of this State.
The Tennessee General Assembly has the sole authority to define crimes and determine
appropriate punishments. State v. Brandon Lloyd Russell, No. M2010-01386-CCA-R3-CD,
2012 WL 927703, at *5 (Tenn. Crim. App., at Nashville, March 15, 2012), perm. app. denied
(Tenn., Aug. 16, 2012). We determine that the trial court properly declined to declare the
statutes punishing child rapists unconstitutional as violative of the separation of powers
among the executive, legislative, and judicial branches of government. Appellant is not
entitled to relief on this issue.

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 Conclusion

For the foregoing reasons, the judgments of the trial court are affirmed.

___________________________________
JERRY L. SMITH, JUDGE

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